Senate Bill No. 263
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act generally revising the laws governing estates, trusts, and fiduciaries; clarifying the recording for unit ownership; clarifying that a court may limit the powers and duties of the guardian of a minor; clarifying provisions relating to multiple-person accounts; clarifying protection for a financial institution for honoring a request for the alteration of rights to a multiple-person account; allowing deviations from the statutory death tax apportionment rule; permitting a regulated financial institution to hire an affiliate for the purchase or sale of investment securities; and amending sections 70-23-304, 72-5-231, 72-6-204, 72-6-213, 72-6-226, 72-16-603, and 72-34-117, MCA."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 70-23-304, MCA, is amended to read:
"70-23-304. Declaration to be approved by department of revenue before recording. Before a declaration may be recorded in the county in which the property is located, it must be approved by the department of revenue. A declaration must be approved unless:
(1) the name
is proper so as to does not comply with 70-23-303; and
(2) all taxes and assessments due and payable have not been paid."
Section 2. Section 72-5-231, MCA, is amended to read:
"72-5-231. Powers and duties of guardian of minor.
A Unless otherwise limited by the court, a guardian of a minor has
the powers and responsibilities of a parent who has not been deprived of custody of his the parent's minor and
unemancipated child, except that a guardian is not legally obligated to provide from his the guardian's own funds for the
ward and is not liable to third persons by reason of the parental relationship for acts of the ward. In particular and without
qualifying the foregoing, a guardian has the following powers and duties:
He The guardian must shall take reasonable care of his the ward's personal effects and commence protective
proceedings if necessary to protect other property of the ward.
He The guardian may receive money payable for the support of the ward to the ward's parent, guardian, or custodian
under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or
custodianship. He The guardian also may receive money or property of the ward paid or delivered by virtue of 72-5-104.
Any sums so received shall must be applied to the ward's current needs for support, care, and education. He The guardian
must shall exercise due care to conserve any excess for the ward's future needs unless a conservator has been appointed for
the estate of the ward, in which case the excess shall must be paid over at least annually to the conservator. Sums so
received by the guardian are may not to be used for compensation for his the guardian's services except as approved by an
order of the court or as determined by a duly appointed conservator other than the guardian. A guardian may institute
proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the
(3) The guardian is empowered to facilitate the ward's education, social, or other activities and to authorize medical or
other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward
resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented. A
guardian may consent to the marriage or adoption of
his the ward.
(4) A guardian
must shall report the condition of his the ward and of the ward's estate which that has been subject to his the
guardian's possession or control, as ordered by the court on petition of any person interested in the minor's welfare or as
required by court rule."
Section 3. Section 72-6-204, MCA, is amended to read:
"72-6-204. Forms. (1) A contract of deposit that contains provisions in substantially the following form establishes the type of account provided, and the account is governed by the provisions of this part applicable to an account of that type:
UNIFORM SINGLE- OR MULTIPLE-PARTY ACCOUNT FORM
PARTIES [Name One or More Parties]: ............................. .............................
OWNERSHIP [Select One and Initial]:
..... SINGLE-PARTY ACCOUNT
..... MULTIPLE-PARTY ACCOUNT
Parties own account in proportion to net contributions unless there is clear and convincing evidence of a different intent.
However, any one party may withdraw the entire amount on deposit in the account. Further, any one party may change the
type terms of account.
RIGHTS AT DEATH [Select One and Initial]:
..... SINGLE-PARTY ACCOUNT
At death of party, ownership passes as part of party's estate.
..... SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION
[Name One or More Beneficiaries]:
At death of party, ownership passes to POD beneficiaries and is not part of party's estate.
..... MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP
At death of party, ownership passes to surviving parties.
..... MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD (PAY ON DEATH) DESIGNATION
[Name One or More Beneficiaries]:
At death of last surviving party, ownership passes to POD beneficiaries and is not part of last surviving party's estate.
..... MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP
At death of party, deceased party's ownership passes as part of deceased party's estate.
AGENCY (POWER OF ATTORNEY) DESIGNATION
Agents may make account transactions for parties but have no ownership or rights at death unless named as POD beneficiaries.
[To Add Agency Designation to Account, Name One or More Agents]:
[Select One And Initial]:
..... AGENCY DESIGNATION SURVIVES DISABILITY OR INCAPACITY OF PARTIES
..... AGENCY DESIGNATION TERMINATES ON DISABILITY OR INCAPACITY OF PARTIES
(2) A contract of deposit that does not contain provisions in substantially the form provided in subsection (1) is governed by the provisions of this part applicable to the type of account that most nearly conforms to the depositor's intent."
Section 4. Section 72-6-213, MCA, is amended to read:
"72-6-213. Alteration of rights. (1) Rights at death under 72-6-212 are determined by the terms of the account at the death of a party.
(2) Except as provided in subsection (3) and unless otherwise agreed in writing between the parties to the account,
terms of an account may be altered by written notice given by a party to the financial institution to change the terms of
account or to stop or vary payment under the terms of the account. The notice must be signed by a party and received by the
financial institution during the party's lifetime.
(3) A financial institution may, in its discretion, refuse to honor a request for alteration of rights that would change:
(a) the financial institution's obligations or rights under the contract of deposit; or
(b) the parties to a multiple-party account if the request is not signed by all of the parties to the account.
(2)(4) A right of survivorship arising from the express terms of the account, from 72-6-212, or from a POD designation
may not be altered by will."
Section 5. Section 72-6-226, MCA, is amended to read:
"72-6-226. Discharge. (1) Payment made pursuant to this part in accordance with the terms of an account, or honoring a request for alteration of rights made in accordance with 72-6-213, discharges the financial institution from all claims for amounts so paid or alterations so made, whether or not the payment or alteration is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors. Payment or alteration may be made whether or not a party, beneficiary, or agent is disabled, incapacitated, or deceased when payment or alteration is requested, received, or made.
(2) Protection under this section does not extend to payments or alterations made after a financial institution has received
written notice from a party, or from the personal representative, surviving spouse, or heir or devisee of a deceased party, to
the effect that payments in accordance with the terms of the account or alteration of rights, including
one payments or
alterations relating to an account having an agency designation, should not be permitted and after the financial institution
has had a reasonable opportunity to act on the notice when the payment is made or the alteration is requested. Unless the
notice is withdrawn by the person giving it, the successor of any deceased party shall concur in a request for payment or
alteration if the financial institution is to be protected under this section. Unless a financial institution has been served with
process in an action or proceeding, no other notice or other information shown to have been available to the financial
institution affects its right to protection under this section.
(3) A financial institution that receives written notice pursuant to this section or otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, without liability, to make payments in accordance with the terms of the account or to honor a request for alterations.
(4) Protection of a financial institution under this section does not affect the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of sums on deposit in accounts or payments made from accounts or regarding whether a request for an alteration of rights to an account was improper between the parties."
Section 6. Section 72-16-603, MCA, is amended to read:
"72-16-603. Tax -- how apportioned. (1) Except as provided in subsection (3) and unless the will or governing
instrument otherwise provides, the tax
shall must be apportioned among all persons interested in the estate. The
apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to
the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used
for that purpose.
(2) If the decedent's will or governing instrument directs a method of apportionment of tax different from the method described in this part, the method described in the will or governing instrument controls.
(3) If the liabilities of persons interested in the estate as described in this part differ from those
which that result under the
federal estate tax law, the liabilities imposed by the federal law control and the balance of this part applies as if the resulting
liabilities had been prescribed in this part."
Section 7. Section 72-34-117, MCA, is amended to read:
"72-34-117. Certain actions and transactions not violations of duties. (1) The following actions or transactions do not violate the duties provided in 72-34-103 or 72-34-105:
The the provision of services for reasonable compensation by a regulated financial institution or its affiliates in the
ordinary course of business either to a trust of for which it or an affiliate also acts as trustee or to a person dealing with the
trust is not a violation of the duty provided in 72-34-103 or 72-34-105.;
(b) the purchase or sale of investment securities between a regulated financial institution or its affiliates in the ordinary course of business or to a trust for which it or an affiliate also acts as trustee.
(2) Subsection (1) does not affect the duty to use ordinary skill and prudence as provided in 72-34-114.
(3) For the purposes of this section, "affiliate" means a corporation that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with another domestic or foreign corporation."